Debate: The Federalization of Criminal Law
  William H. Jordan*

At the 1997 National Lawyers Convention, the Criminal Law and Procedure Practice Group hosted a lively debate on the problems and benefits associated with the substantial growth in the federalization of criminal law. The diverse panel consisted of former Attorney General and current Federalist Society Board of Trustees member Edwin Meese, the Honorable D. Brooks Smith of the United States District Court for the Western District of Pennsylvania, Steptoe & Johnson attorney Richard K. Willard, Professor Tom Stacy of the University of Kansas School of Law, and Duke Law School Professor Sara Sun Beale.

Judge Smith opened the discussion by arguing that federal law should not usurp the traditional role of the states in prosecuting local crimes, unless it can be conclusively shown that the crime implicates a substantial federal interest or creates a strong presumption that the prosecution may be biased. Judge Smith opined that federal prosecutors should become involved in crimes involving local corruption among government officials and acts of racial oppression, but it is the "height of arrogance" for the federal government to believe that it has anything to teach the states in matters such as sexual assault. Clearly, in areas such as sexual assault and other common or peculiarly local crimes, states have superior expertise in investigation and prosecution. A federal prosecutor, therefore, should exercise discretion in determining whether to bring federal criminal charges against a defendant or refer a case to a local district attorney.

Richard Willard noted that there is a disconnect between public sentiment and public policy. Citing a recent opinion poll, Willard stated that eighty-five percent of Americans believe that courts are not harsh enough on crime and that, by 1992, seventy percent of Americans believed that the Bush administration was not doing enough about crime at the local level. Although Willard asserted that many federal criminal laws are unwise and merely symbolic attempts by Congress to appear concerned about crime at a local level, he believes that the "genie of states' rights" cannot be put back into the bottle. In other words, individuals and courts cannot realistically say that Congress can regulate the economy, but not crime. Therefore, the real question is not whether federal law should sanction crimes traditionally covered by state law, but how we can best allocate resources and expenditures to deal with the crime itself, on both a federal and state level.resources

Attorney General Meese argued that a better balance between federal and local law enforcement is needed. He noted that the Constitution places the responsibility for public safety on the states and that the principal reason for the decline in crime in recent years is a result of better enforcement by local police of laws already on the books, and not a result of the crime bills passed almost each year by Congress. Meese urged officials to create a distinction between cooperation among federal and state authorities, and the complete usurpation of local police power by federal law enforcement authorities. It is appropriate for the federal government to supply enforcement functions where the states may lack resources or jurisdiction, but many current attempts to federalize criminal law seem to be little more than attempts by Congress to assuage public opinion. Meese further chided the Supreme Court for its failure over the years to safeguard states' rights against an ever-growing federal government.

Professor Tom Stacy argued that there has been little growth in the federal government's share in the enforcement of crime over time. Stacy cited to data showing that there has not been an increase in the overall burden on judges, because criminal filings, on a per-judge basis, have actually decreased. Moreover, he stated that the increased mobility of individuals and interstate nature of crimes justifies a greater role for the federal government in prosecuting criminal violations. Stacy argued that the Constitution, when viewed in the modern context of Congress' commerce clause authority, is no longer compatible with an idea of limited national power. Accordingly, Stacy's prescription is not the decreased federalization of criminal law, but a better allocation of government resources to areas where federal enforcement is more efficient, such as computer crimes or in under-invested poor areas of a state.

Professor Beale stated that there are both too many and too few federal prosecutions. She noted that forty-eight percent of judges' cases are criminal, and that more than a third of the district courts are devoting at least fifty percent of their calendars to trial time. Moreover, over the last twenty years, there has been a one-hundred percent increase in the number of prosecutors, but only a seventeen percent increase in the number of federal judges. The number of very long trials has increased, along with the complexity and variations of the criminal charges. Professor Beale opined that there have also been too few prosecutions, in that crime is still rampant and the number of state prisons and inmates has grown substantially.

The panelists all agreed that there has been an increase in the federalization of crimes, but differed on the problems created and the prescriptions to remedy any perceived ills. Panelists such as Judge Smith and Professor Stacy believed that the expansive reading of the Commerce Clause essentially permits Congress to enact almost any prohibition it desires. General Meese and Professor Beale, on the other hand, believed that the promise of the Lopez decision, which declared the Gun-Free School Zones Act unconstitutional as violative of Congress’ power under the Commerce Clause, has not yet been fulfilled and may very well be a harbinger for the future of federal criminal laws that tread too far into the states’ traditional area of authority.

*William H. Jordan is an associate with the law firm of Alston & Bird, LLP.


2001 The Federalist Society